DACA back in court next month as Texas moves to end program

After President Trump vowed to phase out Deferred Action for Childhood Arrivals, which protects immigrants brought into the U.S. as children from deportation, federal courts stepped in — and Texas is suing to end the program.

Sister Janet Gildea of the Catholic Diocese of El Paso shows her support for DACA recipients during a rally in El Paso on March 5, 2018. Several rallies were held across the country to urge lawmakers to act on DACA, including a gathering in Washington, D.C.
Julián Aguilar/The Texas Tribune

When the state of Texas successfully halted a proposed 2014 federal immigration program to aid adult immigrants, the state's attorneys were able to convince federal courts Texas would be irreparably harmed by the implementation of the sweeping initiative.

But as the Texas attorney general’s office goes to court next week in an attempt to shut down the 2012 Deferred Action for Childhood Arrivals, that argument won’t be as strong because the program has been in place for more than half a decade, attorneys with the Mexican American Legal Defense and Educational Fund said Tuesday.

On Aug. 8, federal District Judge Andrew Hanen will hear the state's request to have the program preliminarily halted while the issue meanders its way through the federal court system. The hearing comes nearly a year after President Donald Trump promised to end DACA in September by phasing it out over six months. But three different courts have since ruled that the administration must keep the program —which protects immigrants brought into the U.S. as children from deportation and allows them to obtain a two-year work permit — intact for now.

Texas’ success stopping the 2014 program, the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, hinged partly on how Texas argued that it would be adversely affected if the program was allowed to go into effect, saying the Obama administration overstepped its authority and the state would have to spend millions of dollars issuing driver's licenses or other forms of ID to DAPA recipients.

Thomas Saenz, MALDEF’s president and general counsel, said the state’s argument isn’t that strong this time around.

“There is no surprise about what is happening, there is no speculation about what injuries might occur to anyone from the program because it has been implemented as an initiative for nearly six years,” he said. “[The argument] would not have nearly as much strength in this circumstance as with DAPA.”

Attorneys for MALDEF were allowed to represent nearly two dozen DACA recipients in the case after Hanen allowed them in May to intervene in the lawsuit.

MALDEF’s attorneys said the intervention was necessary because Texas and the Trump administration are on the same page with respect to ending DACA — under Trump, the Justice Department isn't fighting to defend the Obama-era program. If Texas Attorney General Ken Paxton, who announced his lawsuit in May, is successful, tens of thousands of Texans would be affected — as of September there were about 120,000 DACA beneficiaries in Texas and more than 800,000 nationwide.

But Saenz also argued that no matter how Hanen rules, other federal judges are also hearing DACA cases and their rulings will have equal weight.

“If Judge Hanenwere to order an injunction … it would not override any order by another district court judge in any of the other pending cases that currently require the administration to continue to operate and grant renewals in the DACA initiative,” he said. “There will need to be further court action.”

That means that DACA’s fate could likely end up in the hands of the U.S. Supreme Court. In June, the Department of Justice asked Hanen to delay a possibleinjunction "so the United States can seek stays of all the DACA injunctions in the respective courts of appeals and the Supreme Court.”

Nina Perales, MALDEF’s vice president of litigation, said there's a slight chance that Hanen will rule next week. She said the Justice Department's tepid defense of DACA could signal the administration's hope that the Texas case will be the vehicle to take the issue before the Supreme Court.

“It’s fairly clear that the Department of Justice is not acting as a true defendant in our case," Perales said.

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